Will Amber Guyger really appeal her conviction and sentence of the murder of Botham Jean?

Today several media sources revealed that lawyers for Amber Guyger filed a notice of appeal for her conviction and sentence of the murder of Botham Jean. This article will explore what an appeal is, how it works, and opine on whether Amber Guyger will in fact appeal.

This case has made headlines since September 6, 2018 when Amber Guyger, a Dallas Police Officer who had come home from work, accidentally walked into a downstairs neighbor’s apartment. Before she realized that she was in the wrong apartment she spotted the victim, Botham Jean, whose apartment it was, and shot and killed him thinking that she had walked in on a burglary in her own apartment.

Amber Guyger was charged with murder and tried, which resulted in her October 1, 2019 conviction for murder. On October 2, 2019 she was sentenced to 10 years in prison. On October 21, 2019 attorneys for Amber Guyger filed a notice of appeal of the conviction and sentence.

What an appeal is

An appeal is a request by the party that loses a trial to ask a superior court to review the record and overturn the conviction and sentence due to error of the trial court. However, only certain things can be appealed. Specifically, mistakes of law, but not mistakes of fact, can be appealed. The difference is that legal issues are of the purview of the court and judiciary, but factual issues are decisions for the trier of fact, i.e., the jury. Factual decisions cannot be disturbed because our American judicial system believes that the triers of fact, who listen to and see the evidence, and observe and hear the testimony, are in the best position to judge relevance, credibility, and make a finding of fact. Furthermore, there is a public policy reason for findings of fact to remain undisturbed. If finding of facts could be appealed and overturned, the system would become arbitrary and there would be no finality.

Mistakes of legal issues and decisions are, however, subject to appeal. A legal issue and decision are those left up to the trial judge. Examples of a legal issue in a criminal case would be deciding such things as a pre-trial motion to change venue, ruling on a motion to preclude evidence from trial, ruling on a motion to allow or preclude an expert witness from testifying, or ruling on an objection during trial. However, even when an appellate court finds error the decision does not get over turned unless the appellate court finds that it was such an egregious mistake that the outcome would likely have been different without the mistake. This is called “reversible error.”

The filing of a notice of appeal

Filing the notice of appeal means very little. This is because the law allows only 30 days from sentencing for the losing party to decide whether to file an appeal. Failure to file the notice of appeal within the 30 days, which is literally just a 1 paragraph statement preserving your right to appeal, forevermore prohibits any appeal. If however a losing party files a notice of appeal they are not compelled to appeal. The appeal can be abandoned at any time.

Why I believe Amber Guyger will not appeal

Before I can get into why I believe Amber Guyger will not appeal, you have to understand how an appeal works. An appeal is not a new trial; nor can any new evidence can be submitted on appeal. Rather, an appeal is a review of the closed universe of the proceedings below as preserved in the court file and minutes of the trial transcript. If an appeal court finds reversible error then the conviction is overturned and the case is dismissed. For now.

And that is the problem for Amber Guyger. If she were to prevail in appeal the case will most certainly continue in the trial court. You see, what happens when an appellate court finds reversible error is that the matter is remanded back down to the trial court for further proceedings, which would mean a new trial consistent with the appellate court’s decision.

Here is an example of what I mean: suppose the issue on appeal is that the trial court precluded the defense from producing expert witnesses at trial. The appellate court finds it was reversible error, vacates the conviction, and remands the case back down to the trial court to re-try the case consistent with the decision; i.e., allow the defense to produce the previously precluded expert.

Re-trying the case consistent with the remediated error does not, however, guarantee a dismissal of the charges at re-trial. In other words, Amber Guyger could be re-convicted at trial. And therein lies the problem.

You see, if she re-convicted then she has to be re-sentenced. In most states sentencing is a legal decision left up to the sound discretion of the court. In Texas however, sentencing is not a legal decision but a factual decision decided by the jury. So if Amber Guyger were re-convicted she would have to also be re-sentenced by the new jury.

The problem with being re-sentenced is that in Texas the jury can sentence a defendant convicted of murder to as little as 5 years and as many as 99 years. The jury in this case sentenced Amber Guyger to only 10 years. Many people, including myself, believed that she got way too little time. So when you analyze it in terms of risk reward, Amber Guyger would be risking getting sentenced to decades more time for the sole benefit of shaving no more than 5 years off of her sentence.

If Amber Guyger is truly thinking of appealing she would be well advised to think otherwise. Amber Guyger walked into a man’s house who was sitting on his couch while watching TV and eating ice cream, and executed him. The sentence she got was a gift.